Justices Add Hurdle for Challenging Presidential Actions (1)

The US Supreme Court has made it harder for courts to stop policies from Donald Trump or future presidents that they deem likely unlawful from being enforced across the country.

An ideologically split court on Friday signaled judges can’t pause executive policies nationwide using so-called universal injunctions, which have become a popular tool to challenge presidents from both parties.

And while the ruling came in a dispute over the president’s order attempting to limit birthright citizenship, it will have implications beyond immigration and even Trump.

“This reasoning can apply to any constitutional right-–from free speech to guns,” said Omar Noureldin, the senior vice president of Policy and Litigation Strategy at Common Cause. Common Cause filed a brief urging the court to rule against Trump’s requests to enforce his birthright citizenship order.

Executive Overreach

Universal injunctions have recently come under scrutiny, as they’ve been increasingly used by lower courts to halt presidential policies—from Presidents Barack Obama to Trump and Joe Biden.

In her opinion for the 6-3 court in Trump v. CASA, conservative Justice Amy Coney Barrett noted that by the end of the Biden administration, nearly every major presidential act was immediately stopped by a single district court judge.

“The trend has continued: During the first 100 days of the second Trump administration, district courts issued approximately 25 universal injunctions,” she said.

The injunctions halted Trump’s policies on government spending, the federal workforce, and immigration.

The court’s ruling largely takes universal injunctions off the table.

Robert Luther III, a law professor at George Mason University, said the court’s decision “recognizes that the executive branch is a bully pulpit with a wide range of authorities to implement the promises of a campaign platform.”

It’s hard to imagine when a universal injunction would be appropriate if not here with birthright citizenship, said Columbia University law professor Elora Mukherjee.

By restricting universal injunctions, the court “makes it more difficult for organizations and for states to constrain executive branch overreach,” Mukherjee said.

Class Actions

Still, Mukherjee said there are other mechanisms to challenge executive overreach–namely, class actions, which she said “can and should be used” going forward.

In a concurring opinion, Justice Samuel Alito called class actions a “powerful tool,” but he warned “the universal injunction will return from the grave under the guise of ‘nationwide class relief’” if district courts award relief to broadly defined classes without following the rules for class certification.

The court included significant language on class actions when it blocked Trump from sending additional Venezuelans to a Salvadoran prison in a May 16 order. It said it can issue temporary injunctive relief to a proposed class, signaling lower courts can also provide relief to people who aren’t named in a lawsuit.

In the court’s ruling Friday, Barrett said universal injunctions “circumvent” procedural rules that require people to meet certain requirements when they join together to seek broad relief through class actions. The rules require the members of a class to have a common claim.

The court this month declined to decide whether federal courts can certify a class when it includes people who haven’t been injured by what’s being disputed. That question was raised by Labcorp in its bid to avoid a class action that accuses it of discriminating against blind people. The court dismissed the case as improvidently granted.

Immigrant groups have already filed a class action following the court’s ruling, the ACLU said in a statement. “This new case seeks protection for all families in the country, filling the gaps that may be left by the existing litigation.”

‘Procedural Bog’

Others doubt that class actions can provide the same kind of protection from unlawful presidential orders.

Class actions may still be a viable tool, Brett Edkins, managing director of policy and political affairs at Stand Up America, said in an email. Stand Up America is a progressive nonprofit organization that fights corruption and voter suppression.

But Edkins pointed to Justice Sonia Sotomayor’s dissent, in which she referred to class actions as a “drawn-out procedural bog.”

“It can take months—sometimes years—to certify a class, leaving people unprotected in the meantime,” Edkins said. “There is still a path forward, but it’s more complex, more expensive, and far more burdensome.”

And Noureldin said the court’s ruling could encourage presidents, including Trump, to push the envelope with executive orders.

“Another implication of this ruling is to embolden the administration to issue a new flurry of EOs because they have been handed a tremendous amount of power,” Noureldin said.